New York State Court of Claims

New York State Court of Claims

STREETER v. STATE OF NEW YORK, #2002-018-127, Claim No. 100623


The Court finds that appropriate force was used in responding to claimant's aggressive and belligerent behavior. No evidence was presented to support the theory that there was negligence on the part of the defendant. The claim is dismissed.

Case Information

WILLIAM W. STREETER The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The claimant seeks damages for injuries he sustained allegedly as the result of negligence or the use of excessive force by the New York State Police on April 10, 1999, at the New York State Police barracks in Fonda, New York. The trial was bifurcated and this decision addresses the issue of liability only.

On April 9, 1999, claimant spent the day at work and had plans to meet his brother and others for dinner that evening. One of claimant's friends met him at a bar in Fonda at approximately 6:30 p.m., where claimant drank two beers. They then went to another establishment, met claimant's brother and friend, and had dinner. Claimant drank one beer before dinner and a second beer after dinner. They ended the evening at Logan's where claimant drank two more beers and a mixed drink. Claimant left Logan's at approximately 12:10 a.m.

From Logan's, claimant walked to his pickup truck and drove down an alley-type road to a main road intersection. He admittedly did not buckle his seat belt until he stopped at the stop sign at the intersection of the alley and the main road. He saw a marked State Police vehicle in the alley. The State Police vehicle followed claimant for two-to-three miles then pulled him over. According to the two troopers involved, Troopers McCrum and Gaba, Trooper McCrum noted claimant driving without a seat belt and for that reason, they made the traffic stop. Claimant promptly pulled over in response to Trooper McCrum activating his lights.

Trooper McCrum approached claimant's window and Trooper Gaba walked along the passenger's side of the truck. Trooper McCrum smelled an alcoholic beverage emanating from the cab of the truck. Claimant was asked to produce his license and registration and to exit and walk to the back of the truck.

According to claimant, he totally cooperated with the officers from providing Trooper McCrum with his license and registration to performing field sobriety tests. He did admit to saying the stop was "b_ _ _ s _ _ _."[1] The troopers testified that claimant was extremely uncooperative and verbally abusive. They had to assist him out of his vehicle and to the back of his truck so they could initiate the roadside driving while intoxicated (hereinafter "DWI") tests. After the field sobriety testing, claimant was taken to the trooper barracks in Fonda. Claimant testified that he was never told he was under arrest, although he acknowledged that he was placed, handcuffed, in the trooper vehicle. Both troopers said claimant resisted having the handcuffs put on, becoming agitated and abusive. Trooper McCrum, who had the primary contact with claimant, described how he continually attempted to maintain control and calm claimant by speaking quietly and giving a complete explanation of what was happening. On the ride to the barracks, claimant recalled amicable small talk between himself and the troopers. The troopers said claimant was calm during this time.

Upon arrival at the station, claimant was taken to the processing room which, as claimant described, contained the Breathalyzer machine and two chairs. Claimant was seated in a wooden chair a few feet inside the doorway while Trooper McCrum prepared the Breathalyzer machine. Trooper McCrum administered the Breathalyzer and the results of claimant's blood alcohol count were .10. Troopers McCrum and Gaba and the claimant were the only people at the barracks.

At the trial, from this point forward, each of the three participants had a different recollection of the events leading up to the time claimant was injured. The Court will set forth each version and subsequently make specific findings of fact.

Upon learning of the test results and that further processing would be required, claimant was upset and repeated that this was "b_ _ _ s _ _ _." In his deposition, claimant said he began to rant and rave. Trooper McCrum told claimant that he needed to be fingerprinted and Trooper Gaba said he was going to call a tow truck for claimant's vehicle and left the room.

Trooper McCrum repeated to claimant that he needed to be fingerprinted; and claimant said he understood, but wished to speak with Bob VanAlstyne, a deputy sheriff with whom claimant was acquainted. The trooper said he could not speak with him because Bob Van Alstyne was in Mayfield. In claimant's deposition he said Trooper Gaba, not McCrum told him Bob VanAlstyne was in Mayfield; on redirect, he noted that one of the troopers said it but he was not sure which one.

Trooper McCrum told claimant if he would not get fingerprinted, he would go to jail instead of arraignment and suggested he should think about what he wanted to do. Claimant said he never refused to participate in the processing. Trooper McCrum then left claimant alone in the room for ten-to-fifteen minutes. Claimant said he estimated the time because there was no clock in the room.

Claimant's leg began to cramp so he got up and walked toward the far end of the room away from the doorway and the chair he was on. When claimant's back was to the door, Trooper Gaba came into the room and while close enough to be touching claimant, screamed "sit down" in claimant's ear. Claimant was shocked that the trooper was screaming. Claimant did not sit down immediately and Trooper Gaba yelled two more times before claimant reacted and turned toward the chair. As he turned to his left, he was hit from behind on the back part of his head. The blow knocked him forward but did not knock him down. Claimant said, "You just screwed up," and he was hit again. Claimant could not get his cuffed hands up to break his fall. He fell forward, hit his forehead on the floor and recalled seeing black.

The next thing claimant remembers is Trooper McCrum helping him up to the chair and being cuffed to a chain on the wall. The troopers then completed the arrest process by fingerprinting and photographing claimant. Claimant was alone again until Sgt. Jovanovitch entered.

The sergeant took a statement from claimant on three-quarter size, form paper with carbon copies attached. He recalls proofreading the statement; the sergeant wrote the document and then claimant read and initialed each page. On the first three to four pages he used the initials, "B.S.," and on the remainder he used "W.S." Claimant then heard a noise from the back door and heard Bob VanAlstyne's voice but claimant did not see him that night. Some time thereafter, claimant was taken to St. Mary's Hospital for treatment. He received an abrasion and contusion on his forehead, a contusion on his right occiput, a strain to his right first metacarpal and carpal joint, a superficial bite to his left tongue tip and an abrasion and contusion to his left lower lip.[2]
After the results from the Breathalyzer were obtained, Trooper Gaba was in the processing room, leaning on a windowsill to the right of where claimant was sitting, when Trooper McCrum advised claimant that he was to be charged with DWI. Claimant was angry, using profanity and claiming the officers set him up. Both troopers told claimant to calm down; Trooper McCrum said claimant was not making it any better for himself by his behavior. Trooper McCrum went on to explain to claimant the procedure for fingerprinting and photographing a person charged with a misdemeanor. Claimant continued to be verbally abusive and uncooperative.

Trooper McCrum left the processing room to call a tow truck for claimant's vehicle, and Trooper Gaba stayed in the room. Trooper Gaba recalled that claimant was not left alone in the processing room because he was not handcuffed to the chain imbedded in the floor. Claimant was agitated and fidgeting while Trooper Gaba talked to him about the required processing. Claimant repeated that it was all "B.S." then said he would not do anything,[3] and stood and turned toward Trooper Gaba and the door. Trooper Gaba asked him to sit down. After a slight hesitation, claimant moved toward the door.

Trooper Gaba stepped in front of claimant, told him to stop, and put his hands on claimant's shoulders as claimant continued to move forward toward the door. Trooper Gaba pushed him back toward the chair. Claimant grabbed Trooper Gaba's shirt and tie; pushing him in the chest while Trooper Gaba pushed claimant by the shoulders, sitting him back in the chair.

Claimant got back up, still holding Trooper Gaba's shirt and tie, and the pushing continued. To get claimant off of him, Trooper Gaba, using claimant's forward momentum as claimant pushed into his chest, threw claimant into the door. The back of claimant's head hit the door. As claimant rebounded, Trooper Gaba used a leg sweep[4] to take claimant to the floor and control him.

Claimant fell to the floor face first; Trooper Gaba held him down by leaning on claimant's shoulders. By now, Trooper McCrum was in the doorway and assisted Trooper Gaba by holding claimant's legs until claimant calmed down. Claimant was returned to the chair and then was handcuffed to the chain cemented into the floor.

Trooper Gaba left the room to call a sergeant, the required procedure when a prisoner gets injured, and thereafter stayed out of the room. Trooper McCrum remained with claimant.

Trooper Gaba rode with claimant and Trooper McCrum to the hospital but rode back to the barracks with Captain Pace who met them at the hospital. He assisted Trooper McCrum in completing the paperwork required for claimant's arrest, then left. The DWI bill of particulars form[5] contains a section which requires the initials of the arresting officer and the arrestee. Claimant initialed the document in Trooper Gaba's presence, using the initials "B.S."

Trooper Gaba testified that no one other than claimant and the State Troopers came to the barracks in Fonda that night.
Upon their arrival at the Fonda barracks, the troopers took claimant into the processing room where Trooper McCrum had claimant sit in a wooden chair. Trooper Gaba may have left the room briefly to enter the arrest in the blotter. Approximately five to eight minutes after entering the room, claimant took the Breathalyzer test. Trooper McCrum thought Trooper Gaba was in the room at this point, although Trooper Gaba may have left a few times for administrative reasons. Claimant's test results were a .10; and as a result, Trooper McCrum told claimant he was legally intoxicated. Claimant became agitated and Trooper McCrum directed him back to the wooden chair from the Breathalyzer machine. Although claimant could have been chained to the floor, he was not.

Trooper McCrum then told claimant that further processing, such as fingerprint cards and photographing would be necessary. Claimant responded repeatedly that it was all "b _ _ _

s _ _ _," and refused to cooperate with the fingerprinting. Trooper Gaba was in the room during this exchange. Trooper McCrum explained to claimant that his continued refusal would result in his being held after arraignment to complete the processing. Claimant continued to refuse. Trooper McCrum then left the room to complete paperwork, specifically the DWI bill of particulars. He went to the patrol room just outside the processing room. Claimant had not been left alone up to this point because he was not secured to the chain on the floor, and he was highly agitated and uncooperative. The troopers must prevent a prisoner escape, personal injury or property damage so Trooper McCrum felt claimant should be in sight at all times.

From Trooper McCrum's desk, 10 feet away, he could not see the interior of the processing room because of the angle. Trooper McCrum heard Trooper Gaba say sit down a few times and each time he said it, his voice inflection changed so Trooper McCrum surmised Trooper Gaba was having trouble with claimant. Claimant's voice was agitated but Trooper McCrum could not distinguish any words.

After a few seconds, Trooper McCrum walked over to the processing room and stopped at the doorway. He saw Trooper Gaba and claimant standing in about the center of the room with claimant's hands against Trooper Gaba's shirt near his neck line pushing him. Trooper Gaba was pushing back on claimant's shoulders trying to gain control of claimant. Both of them rotated and claimant's back hit the processing room door. Trooper McCrum was in the open doorway. Claimant rebounded off the door and fell face down with Trooper Gaba on claimant's back. Claimant tried to get up so Trooper McCrum went over to secure claimant's legs and feet. At this point, claimant was near the center of the room. Trooper Gaba was telling claimant to calm down and to stay on the floor. After claimant calmed down, they helped him up and sat him back on the chair and secured him to the chain on the floor. Trooper McCrum stayed with claimant and Trooper Gaba left the room.

One of the troopers called Sgt. Jovanovitch who eventually arrived at the barracks and took a statement from claimant. Trooper McCrum drove claimant to the hospital and stayed with him there. He recalls completing claimant's processing and paperwork after returning from the hospital. Trooper McCrum believes Trooper Gaba rode in different vehicles to and from the hospital. No one else came to the barracks that night. Trooper McCrum took claimant to court for arraignment at approximately 6:00 a.m.
Where the parties involved present markedly disparate factual accounts of the incident leading to claimant's injuries, the responsibility for assessing the credibility of the witnesses and resolving factual discrepancies lies with the trier of fact. (See, LeGrand v State of New York, 195 AD2d 784, 785, lv denied 82 NY2d 663)

The claimant's statement to Sgt. Jovanovitch given the night of the incident said Trooper Gaba "grabbed me by the shoulders and threw me down on the floor."[6] There is no mention of a hit on the back of his head although claimant's statement includes a bump on the back of his head as one of his injuries. The medical records support this fact but do not contain any history that would explain an injury to the back of claimant's head. Claimant's next recitation of the events is his deposition taken February 14, 2000,[7] and states that claimant was hit in the back of the head by Trooper Gaba, he fell to the floor and then, "I saw black for a time period."[8] At trial, claimant testified Trooper Gaba hit him on the back of his head which knocked him forward but not to the floor, then he was struck a second time and he fell to the floor. Again, he said he saw black and he could not say if he was knocked out. The medical records of that evening say "Negative for loss of consciousness."[9] Although claimant's original statement is, arguably incomplete, what he describes in it comports with the memoranda written by the troopers that night. Trooper McCrum said that, "...Trooper Gaba was able to put Streeter to the ground...",[10] and Trooper Gaba wrote:

Writer [Gaba] met Streeter at the door and restrained him by

grabbing his shoulders and telling him to sit down in the chair.

Streeter stated ‘f _ _ _ you' and continued toward the door

pushing on writers [sic] chest with his closed fists. Writer

continued to order Streeter to be seated and attempted to push

Streeter back into the room and ordered him to stop resisting.

Streeter continued to fight with writer and writer attempted to

take the subject down to the ground to restrain him from making

any more aggressive moves toward writer. Writer shoved Streeter

into the door of the processing room and took the subject to the


Other facts not contained in the claimant's original statement were included in later recitations. For example, there was no mention of Trooper Gaba leaving the processing room in claimant's first statement; he was in the room talking to claimant. In claimant's deposition, he did leave the room but claimant gave no explanation for why he got out of the chair and wandered around the room. At trial, claimant says he got a cramp in his leg and got up to walk it out while alone in the room.

At trial, claimant described the barracks and processing room in detail but testified that there was no clock, no sink and no second desk in it. The photographs of the room show these items[12] in that room. Although the clock and desk could have been added since the incident, it is highly unlikely that the sink was new. Claimant's memory was faulty regarding his statement to Sgt. Jovanovitch as well. He recalled initialing and signing an eight or nine page statement. The statement was barely three pages long.[13] Claimant recalls the paper the sergeant used as being approximately eight inches long; the paper was standard size. Claimant said he initialed the statement with B.S. then W.S. All of his initials on the statement were W. S. He used B.S. on the DWI bill of particulars.

As a rebuttal witness, claimant called Deputy Robert VanAlstyne to dispute the testimony of the three troopers, Troopers Gaba, McCrum, and Sgt. Jovanovitch, who all testified that no one other than the troopers and claimant were at the barracks that night.

Deputy VanAlstyne testified that he was on road patrol the night of April 10, 1999 when he received a radio call from the dispatcher. He was dispatched to the State Police Barracks to help calm the claimant. When he arrived at the barracks, he went to the back door and knocked. A trooper with sergeant stripes answered the door and told him his assistance was no longer needed so he left. Deputy VanAlstyne did not know the trooper who answered the door.[14] Claimant recalled hearing Deputy VanAlstyne's voice that night.

It is troubling to the Court that none of the troopers acknowledged the arrival of the deputy although it is possible that Troopers McCrum and Gaba were unaware that Mr. VanAlstyne went to the barracks that night.[15] One of the troopers had to place the call to the sheriff's department to request that Deputy VanAlstyne be dispatched to the barracks. After reviewing the trial testimony, none of the troopers were asked if they had placed the call. In any event, any lack of candor on this issue by at least one of the troopers is not germane to the events leading to claimant's injury and does not distract from the consistency of Trooper Gaba's description of what transpired that evening in his initial statement, his deposition testimony and his trial testimony. His recitations of the events were also supported by claimant's medical records and, to some degree, by Trooper McCrum. As noted above, claimant's recollection of that night is flawed. Although both sides gilded the lily, the Court finds Trooper Gaba's description of events most credible.

Claimant alleges Trooper Gaba used excessive force that night. Claims of excessive force must be examined within the context of the circumstances in which they arose. (Cf., Passino v State of New York, 175 Misc 2d 733, 736, aff'd 260 AD2d 915, 916; lv denied 93 NY2d 814; Lewis v State of New York, 223 AD2d 800; Brown v State of New York, 24 Misc 2d 358) Law enforcement officers are permitted to use force which is reasonable and appropriate under the prevailing circumstances. (See, Wester v State of New York, 247 AD2d 468; Higgins v City of Oneonta, 208 AD2d 1067, lv denied 85 NY2d 803; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723; Stein v State of New York, 53 AD2d 988; Brown v State of New York, supra)

The defense called an expert witness, Sgt. Nick Coffman of the New York State Police. Sgt. Coffman teaches Defensive Tactics and Physical Training at the State Police Academy in Albany and taught Troopers McCrum and Gaba. Troopers are taught the level of response they should use when dealing with arrestees. Sgt. Coffman explained how the behavior of a person interacting with the police impacts the behavior of the officer involved. In doing so, Sgt. Coffman used a chart called the Use of Force Continuum.[16] The chart separates an arrestee's type of behavior into five (other similar charts sometimes use four) levels. Opposite the behavior is the level of response by the officer. For instance, if the arrestee is being cooperative and calm, level one, the officer's response must also be level one. The levels are fluid and can overlap. Also, an arrestee's behavior does not necessarily move orderly from one level to the next. A seemingly cooperative person pulled over for a traffic stop could suddenly display a weapon, thereby moving directly from level one to level four behavior. The troopers are instructed to respond at an equivalent or lower level of force which corresponds to the arrestee's behavior level.

In Sgt. Coffman's opinion, after reviewing the troopers' deposition transcripts and hearing them testify, neither McCrum nor Gaba used excessive force in restraining claimant. The sergeant felt claimant's behavior had reached a level four when claimant grabbed and pushed Trooper Gaba. As part of their training, troopers learn that people in custody can use handcuffs as a weapon. Trooper Gaba used a level three response with the leg sweep. In Sgt. Coffman's opinion, Trooper Gaba was justified in the level of force used.

The Court finds, based upon Trooper Gaba's description of the incident, that he used appropriate force in responding to claimant's aggressive and belligerent behavior. No evidence was presented to support the theory that Troopers Gaba or McCrum acted negligently that night.


April 4, 2002
Syracuse, New York

Judge of the Court of Claims

[1]All quotes are from the trial transcript or the Court's trial notes.
[2]See Exhibit 10.
[3]Claimant needed to sign the fingerprint cards and initial the DWI bill of particulars.
[4]A tripping technique.
[5]Exhibit Q.
[6]Exhibit G
[7]Exhibit N
[8]Exhibit N, p. 84, l - 8
[9]Exhibit 10
[10]Exhibit K
[11]Exhibit J
[12]Exhibits B, C, and D
[13]Exhibit G
[14]Deputy VanAlstyne testified that he was an acquaintance of claimant and Troopers McCrum and Gaba.
[15]Sgt. Jovanovitch was the only trooper with sergeant stripes at the barracks that night during claimant's processing.
[16]Exhibit S